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By Root 2073 0

the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived, from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society, who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprize us, that the government can have no great option between fit characters; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.

Upon the whole, there can be no room to doubt, that the convention acted wisely in copying from the models of those constitutions which have established good behaviour as the tenure of judicial offices, in point of duration; and that, so far from being blameable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution.

PUBLIUS

THE PROBLEM OF DECLARING RIGHTS

James Madison: Letter to Thomas Jefferson—excerpt (October 24 and November 1, 1787)

PAGE 549

Thomas Jefferson: Letter to James Madison—excerpt (December 20, 1787)

PAGE 561

James Madison: Letter to Thomas Jefferson—excerpt (April 22, 1788)

PAGE 565

Thomas Jefferson: Letter to James Madison—excerpt (July 31, 1788)

PAGE 566

James Madison: Letter to Thomas Jefferson—excerpt (October 17,1788)

PAGE 568

James Madison: Letter to Thomas Jefferson—excerpt (December 8, 1788)

PAGE 573

Thomas Jefferson: Letter to James Madison—excerpt (March 15, 1789)

PAGE 576

Thomas Jefferson: Letter to James Madison (September 6, 1789)

PAGE578

James Madison: Letter to Thomas Jefferson (February 4, 1790)

PAGE 584

SHORTLY BEFORE THE CONSTITUTIONAL Convention adjourned, James Madison sent Thomas Jefferson, then serving as American minister to France, a gloomy letter, predicting that the completed Constitution “will neither effectually answer its national object nor prevent the local mischiefs which every where excite disgusts against the state governments. The grounds of this opinion will be the subject of a future letter.” Madison waited another seven weeks before fulfilling this promise. When he did, in a lengthy missive of October 24, 1787, he went to great lengths to justify the most controversial proposal he had presented at Philadelphia: to give the national government a negative (we would say, a veto) on all state laws, which it could use both to protect national laws against interference from the states and to intervene within the individual states to defend the rights of minorities.

Madison’s letter was the first in a series the two men exchanged—often with great delays, due to the vagaries of the Atlantic passage—over the next year and a half. It is perhaps the single most fascinating exchange of political views in all of American history, conducted by two friends who respected and admired each other, but who sometimes reasoned very differently.